Public Bill Committee

[Mr. Christopher Chope in the Chair]
AS 09 Alliance for Inclusive Education
AS 10 National Union of Teachers
AS 11 NASUWT

Christopher Chope: Good morning, and thank you all for coming to give evidence. I hope that you will be able to keep your answers succinct so that we can cover as much ground as possible before 10.25 am, when we have to adjourn this sitting. Please briefly introduce yourselves.

John Dunford: I am general secretary of the Association of School and College Leaders, which represents secondary school leaders and college leaders, predominantly sixth-form college leaders.

Chris Keates: I am the general secretary of the NASUWT, which represents teachers and head teachers across the UK.

John Bangs: I am assistant secretary of the National Union of Teachers, with responsibility for education, equalities and professional development.

Q 220220

Nick Gibb: Welcome to our proceedings. It is very good of you to come in. One theme that runs through the briefings on the Bill from all three unions is that it seems to increase the bureaucratic burdens on schools. John Dunford, in the ASCLs submission you talk about an unnecessary increase in bureaucracy and work load for school and college leaders and diminished powers for school and college leaders with regard to day-to-day management. Similar concerns are expressed in the brief from the NUT, which has reservations about making childrens trust boards statutory and would oppose any requirement on schools to provide separate reports on pupil behaviour to them. Will each of you comment on your overall concerns about increased bureaucratic burdens on school leaders and teachers?

John Dunford: Our overall concern about the Bill is that it is part of a massive regulatory climate in which schools work, which has increased hugely over the years. Every time we get an education Actwe get one or two every year and so have had at least 20 in the past 20 yearseach one has increased the duties on schools and the bureaucratic burden, particularly on head teachers, to fill in forms and make reports on this, that and the other. We accept our duty as public servants to be accountable for spending public money efficiently and effectively, but we want to do that in a climate that is as unbureaucratic as possible so that we can really get on with the job you pay us to do.

Chris Keates: As you rightly observed, Nick, by referring only to the ASCL and the NUT, the NASUWT has not taken quite the same line: we are actually broadly supportive of the Bills aim, which is to bring coherence right across an important public service, acknowledging that schools alone cannot meet all the needs of children and young people and therefore have to be part of a much tighter community.
We are very supportive of regulating childrens trusts and many of the other regulatory functions in the Bill. We do not see it as imposing additional burdens on schools; most people would say that they are doing those things alreadythat they are co-operating. Our view is that if they are doing those things already, then the regulation is not going to place an additional burden. There is no reason why a regulatory provision, for example on childrens trusts, should be a burden on schools. It simply places a duty on them to co-operate, across the local authority, with the young persons plan and surely that has to be right when you are trying to make a service more coherent. I cannot see huge bureaucracy coming from that, but clearly schools will have to play their part in that structure.

John Bangs: There are a number of points, but I would first like to thank the Bill team. Conversations with them have been extremely productive and there has been a genuine listening process. That has happened in previous Bills, but I think that this has been one of the best conversations we have had.
In parts, there is too much bureaucracy. In parts, there are sections which are very important and we have chosen not to comment on them or promote them, particularly on apprenticeships for examplethat is a very important section. There are other themes that run through the Bill as well: the establishment of three new agencies; one non-ministerial Government Department; and, if childrens trusts become statutory, a set of local agencies as well. We therefore see the development of agencies as a theme running through the Bill.
I agree with John, in part, about the issue of work load as it bears down on teachers. There is an issue, a potential consequence, of work load, but in a sense we thinkand we will comment if there are any questions on those particular areasthat a teachers professional judgment is likely to be undermined in certain aspects, particularly under the behaviour sections of the Bill. We would obviously like to have the opportunity to comment on those. So there are the issues of professional judgment and agencies, and in part I agree with John about the work load.

Q 221

Nick Gibb: I would like to ask you about another issue: the provisions relating to behaviour and the new powers for schools. What is your view of those and do you think that they deal with the problem of proportionality, which I understand is a concern for teachers. The phrase in the existing legislation is that teachers have to act proportionately. Of course, they are going to want to act proportionately and do act proportionately. However, the requirement in the legislation to act proportionately is, I understand, a cause of uncertainty in the profession that prohibits and is a disincentive to using those powers. Will you let the Committee have your views about the current provisions in the Bill relating to behaviour and the existing legislative structure?

John Dunford: We welcome the additional search powers, but we refer to some very specific issues in our briefing and I very much hope that the Committee considers themfor example, the number and gender of teachers who have to be with children when they are searched. I presume you do not want me to go into that level of detail in this general session. In general terms, we welcome the search powers, but please look carefully at what we say in our briefing, because we think that you could actually make it more difficult, instead of less difficult, which is what you are trying to do.
On the use of force, we are clear that if there is a major use of force then that is something the school would wish to communicate about with a parent, and schools already do that. If, on the other hand, a teacher goes into the playground to break up a fight and does so, we do not want to get into a position where that kind of thing has to be reported to parentswe should just deal with it and get on with life. It might be on the face of the Bill or it might be in guidance, but we want to make it clear that that duty relates only to significant use of forceif you feel that that can be properly defined. Otherwise, frankly, we would not want another legal duty in this area.

Chris Keates: We are broadly supportive of both the power to search and reporting the use of force. As for bureaucracy and workload, there are problems with these in schools but we do not believe that they are generated by regulation or will be generated by regulation in the Bill. This Committee is obviously not hearing details about what generates bureaucracy in schools, but our extensive work on that shows that it does not come from regulation. It is normally generated internally or by things such as the inspection process.
We are supportive of the power to searchparticularly where the Bill specifies which areas can be the subject of search. We think that that protects schools against claims of abuse of the rights of the child. There is already a power to search for offensive weapons and schools are putting in systems to deal with that. It has not been a matter raised with us as a cause for concern, either by our school leader members or teacher members. We think that the power is going to be helpful to teachers.
In terms of reporting the use of force, why would schools not want to record and report any significant incident with the use of force? Schools have a health and safety legal duty to protect employees and pupils. Therefore, recording is going to be an important part of protection for the school, for the individual staff and the young people. Schools ought to be collecting that kind of data. How do you analyse and make strategic and operational decisions about how to deal with issues arising in the school if you have no data to back them up? Recording incidents, assaults and bullying allows the school to analyse where the pressure points are. Are there particular things about the way the school is organised? Are there problems in particular areas?
We welcome the clarity and transparency that this will bring. The recording system need not be highly bureaucratic. We have seen some very simple systems where teachers can enter the data quite easily, and would have to do so anyway if there were a serious incident. A system where it can be entered once and then analysed and reported appropriately would be a good move.
Though it is right to report incidents of this sort to parents, we think it is important that the school has the flexibility to determine how that is done. For example, there could be a child who is at risk of abuse at home, and reporting directly to the parent about an incident might put that child at even further risk of abuse from the family. The school must have the flexibility to say that it would report to the parent but through an agency that might already be dealing with the family, such as social services. So, reporting to parents is the one area where we think clarification would be helpful.

John Bangs: We have a slightly different view on part 11 on pupil behaviour. We supported the provision in the Education Act 1996 to protect teachers in relation to physical restraint. If there is any lobbying to water that down from other groups during this Bill, we will set up a counter-lobby to resist it. That was a necessary protection because teachers were being accused of child abuse when they were in fact intervening to protect children from their own actions and the impact of their actions on others. There is a theme running from that: teachers have to be protected sometimes in their use of professional judgment. The term power is very important when it comes to the search for weapons. If the head teacher or teacher believes, in extremis, that they had to search immediately for a weapon, they should not be subject to prosecution for doing so.
The reference in the accompanying notes to the Bill is to health and safety. That is absolutely right. It should be health and safety. Therefore, lumping together alcohol, drugs and stolen property, and simply describing that as an extension of the power to search without the necessary testthe protection of the teachers professional judgment when used to seek to protect other pupils and possibly staffis partial and it could also kick back on the teacher themselves, because the burden of proof rests on the teachers shoulders that they were right to search for stolen property. We would like, and we have argued for this during discussions in the ministerial stakeholders group, a clause additional to the existing clauses on offensive weapons that does not specify areas, but says that when teachers search they do so on the grounds of imminent harm to pupils. That meets the test set out in the explanatory notes too, which is about health and safety.
We are concerned that the more you put in to specify items, the more you leave out. For example, if a teacher decides that a child has in their bag 200 cheap cigarettes from abroad and is going to sell them there and then, they are not covered by the Bill. If a teacher decides that some material brought in by a student is offensive, such as violent pornography, for example, it is not covered in the Bill but it could be dangerous and harmful to other pupils. We think that there should be a test within this clause to back teachers professional judgment when they decide to search, because they cannot call in the police or the designated security guard because there is not enough time, and the student resists. We have been pressing hard for that.
We are concerned about the recording of incidents of force to control or restrain pupils. We do not know where this has come from. We advise in all our behaviour guidance that incidents should be recorded for the protection of teachers. I do not think that any other union would take a different view. I am sure that we all take that decision. But Chris made a very important point. I am going to repeat it. This is again about head teachers professional judgment. The word significant is quite loose. If a head teacher decides not to report a significant incident to a parent because they believe that to do so endangers the child because the parent may take it out physically on that child when that child returns home, you are caught in a bind. Do you seek to protect the child because the incident is over and done withthe restraint has taken placeyet the parent is likely to exacerbate it? We do not know where this has come from and we are concerned about it.
There is another aspect, as we are on behaviour and I am very glad that Mr. Gibb raised this area, and that is the burden of school behaviour partnerships. Incidentally, we agree that there should be a requirement to have school behaviour partnerships. Our concern is the requirement to report to childrens trusts, and the statutory requirements of childrens trusts may come up later. We do not believe that collections of schools or individual school governing bodies should be required to report. It is not simply that it is an additional burden. We just do not understand the purpose. Reporting to a statutory body has to have some consequence other than just putting material in the report. The issue is how can behaviour partnerships help all schools.
Finally, on short-stay schools, we welcome the new title for pupil referral units but we are concerned that if the Secretary of State decides to move and close down a short-stay school, there has to be a replacement with sufficiency of provision.

Q 222

David Laws: I want to ask you about the other areas that may cause bureaucratic concerns. Before I do that, however, can I finish off the issues that Nick has touched upon, particularly on the recording and reporting of the use of force, because I am not clear what significant means either? In the situation that John Dunford was talking abouttwo 15-year-old boys are beating each other to death in a fight in the playground and a teacher rushes out to break it up, intervenes and there is a struggle for a few seconds in which one of the youngsters is pulled to one side and the other is pulled to the other side and, perhaps, trips and falls in the playground, maybe grazing the edge of his elbow, but nothing too seriouswould and should that incident need to be documented and a letter sent to the parents? Can John Dunford answer first?

John Dunford: We would look to hold discussions with the Government on the guidance on the Bill to ensure that head teachers were protected by it in relation to any definition of the word significant. If they areto approximately quote youbeating each other to death, it sounds like quite a significant incident, especially if death results.

Q 223

David Laws: Let us make it more ambiguous and make it an ordinary playground fight.

John Dunford: If it is just an ordinary playground fight, I do not think that it is a significant incident.

Q 224

David Laws: You would not want to record or report it?

John Dunford: No, not as a general rule. The point has been made by John, quite correctly, that it has to be the head teachers judgment.

David Laws: To clarify, this is a medium-grade fight.

Chris Keates: I thought that your question was more complex than that. I thought that you were referring to the use of force in the teacher separating the pupils.

David Laws: Yes, I was.

Chris Keates: First of all, as far as I am concerned, if that kind of incident has occurred, it should be recorded anyway because there are behaviour issues. On the use of force, the provisions in the Bill are actually going to be helpful. At the moment, teachers face the challenge every day of whether they are committing common assault by intervening, often getting injured for their pains, but still finding themselves faced with that issue. I agree that if we have the provision in the Bill, it gives us an opportunity to start to clarify the issues about teachers power to restrain pupils, what constitutes the use of force and to ensure that we can give some clear professional guidance. Everything will depend on the professional judgment of the teacher and the head teacher dealing with those incidents. They have to be clear about what their requirements are in terms of ensuring that there is clarity around that incident and how it will be dealt with.

Q 225

David Laws: Are you not concerned though? In my scenario, in which the teacher has broken up this medium-grade fight, under the Bill, not only will they record it but they will have to write to the parents, who may be very sympathetic to the school or not, who will get a letter saying, There was a significant incident in which a member of my staff had to use force to separate your child from somebody else. Unfortunately, he fell on the ground and grazed himself. Do you have no concerns that that might make teachers quite reticent about getting involved in those incidents?

Chris Keates: No more reticent than they are at the moment and this might give some added protection. At the moment, that might not be recorded or formally reported back to the parents, but you can be absolutely sure that nine times out of 10 someone is going to raise with the school that a member of staff has assaulted a pupil. Those incidents take place very frequently. In the context of this, the teachers have some clarity, protection and backing for something that, at the moment, is quite wide and covers the judgments that they are making every day. I do not think that there is any more danger of it provoking that kind of complaint than there is at the moment, but, if the complaint is provoked, at least the teacher has a statutory provision and guidance on what is reasonable use of force and more clarity on restraint.

Q 226

David Laws: John Bangs, would it and should it?

John Bangs: I am glad you asked that question. I taught in a special school for 18 years. It was a secondary school for moderate learning difficulties. It was a proxy for mild emotional, behavioural difficulties. To prevent a child from running out of the classroom door, you had to physically intervene. Did I have to record that every time? No, because that was the nature of the children in the school. The school had a restraint policy, which was understood consistently. We also had a policy about intervening to help other members of staff, not in terms of force, but behaviour.
The danger with putting this into legislation and then identifying what is significant is that the normal relationships that you have, particularly with tough pupils, will be undermined because you constantly have to check back to see whether you have to record it. As John said, there has to be professional judgment in the context of the behaviour and restraint policy of the school.
It will always be the outliers that cause the problems. I am concerned about emotional and behavioural difficulties schools and pupil referral units, which are soon to be called short-stay schools. For example, I am concerned about the large student with severe learning difficulties, who sometimes acts out. You will be faced with a mountain of bureaucracy because you have to consistently record your physical intervention, which is sometimes necessary. Your example is right. I probably would record it if there was a graze and report it to the parent. That child would take the graze back to their parent and that is an issue. As John says, there must be professional judgment.

Q 227

David Laws: May I move on to parental complaints, on which I think there is unanimity between all three of you? New arrangements are coming in that will allow people to refer some complaints to the local government ombudsman. You have all been critical of that, but in fairness to the Governmentwe are always fair to the Governmentthe existing arrangements mean that some appeals can go all the way up to the Secretary of State for Children, Schools and Families. That does not seem particularly rational in the decentralised world that we are supposed to be aiming for. What is wrong with the Government proposal and what would be better?

Chris Keates: We simply would not have started from here on the issue of parental complaints. We were not convinced that there was any evidence that the system for making complaints was broken. I accept that some complaints were going to the Secretary of State, but from the information we had, they seemed mainly to concern special needs and not complaints on the wider basis that the local government ombudsman will deal with.

Q 228

David Laws: What sort of special needs complaints were there?

Chris Keates: I think that they were about special needs provision. I think that there were about 800 a year, but I am not sure about that figure. I am conscious that figures need to be accurate.

David Laws: Ministers do not worry about those thingsI am only joking.

Chris Keates: Once the Government decided to go down this route, we were relieved that the external body would be the local government ombudsman. At least the ombudsman has a background in handling such complaints. To be perfectly honest, we did not see the need for this external procedure. There might have been a need to ensure that schools had consistent and clear processes for processing complaints, but I never saw evidence to suggest that this was a real issue or that parents were dissatisfied.
The parents who are dissatisfied with complaints are those who will never be satisfied unless the outcome is the one that they want. We face that from casework in our union. If there is a complaint about a teacher, the parent who has made the complaint has only one satisfactory outcome, and if the teacher is not sacked, the complaint has not been dealt with appropriately. Those are likely to be the parents who will take complaints through to the local government ombudsman.
We have reservations about the practicality and manageability of vexatious complaints, and with the direct access of pupils. There are ways in which pupils can raise things already. However, the biggest issue for us is the lack of clarity on ensuring that staff in schools do not face double jeopardy when decisionsperhaps formal or informalhave been made by the school management about incidents that have occurred, and that is what we put in our briefing note. That has to be made clear, so that the local government ombudsman is not second-guessing the employer or managers decision about how they have handled the particular issue, and so that the system does not start to drive schools into saying, Well, to protect ourselves against a complaint, where we might have had a word with that teacher about something, we will now do a formal procedure, because otherwise we will get a complaint and the local government ombudsman might think that a formal procedure is better. That is a real issue for us about this system.

Q 229

David Laws: Thank you. John Bangs, could you say whether or not you think that this measure will lead to more complaints and more bureaucracy, which Chris has hinted might be the case?

John Bangs: That is a good question. I am not sure where the motivation for this particular section of the Bill has come from. I suspect that it is because the assumptionI agree with Chris that it is an erroneous assumptionis that there is a whole log-jam of complaints out there, with frustrated parents who want to make complaints, and that this is an easier way for them to make complaints. I do not think that there is that log-jam, actually, and the evidence from Ofsted does not show that there is either. In fact, a complaints procedure already exists with Ofsted. There has to be a complaints procedure for parents, obviously; that procedure is important and it does exist. Our principal concern, which we mentioned in our briefing, is this issue about vexatious and malicious complaints.
I just want to elaborate on the example that Chris gave. There are a number of parentswe came across an instance of thiswho, for example, send their child to an autism unit in a mainstream school. They may be in denial about the severity of their childs needs and they may see that route as a more convenient route for continually pursuing the need for extra provision and for asking about the way that the teacher relates to their child. Of course, that parent has a right to complain through the special educational needs and disability tribunal if they do not believe that the provision exists. What I am anxious about is the increased potential for irrelevant vexatious and malicious complaints with this system. If this measure is going to go through, we need to be very clear and very careful about what complaints are valid and what complaints are not valid.

Q 230

David Laws: Finally, John Dunford, can you say what you would prefer to see if this measure does not go through?

John Dunford: I echo the points that have been made by my colleagues, particularly in relation to vexatious complaints. We think that, although it may be slightly silly to have a process that must go to the Secretary of State as the last part of that process, that is a nut and this is a sledgehammer. We really think that this measure is an unnecessary overreaction to that rather small problem.
We think that, yes, parents need to be able to appeal. They appeal against the head teachers judgment, generally to the governing body; that is the next line of defence for them. There are parents who will go on and on, whatever you give them. However many lines of process you give them, they will go on and on through that process. In my experience, those complaints are not the most justified complaints; they just tend to be made by the most awkward parents, if I might put it that way.
In answer to your question, David, if parents get no joy from the governing body, they will commonly write to the local authority and someone in the local authority will deal with that complaint. However, what you have here is a really huge bureaucratic process that I think is an overreaction to a small problem. We are really quite worried about it, particularly in relation to the time commitment that we know head teachers will have to make to fill in all the forms and so on when you have this kind of procedure. That is perhaps our major worry about this Bill.

Q 231

Jim Knight: I apologise because I am going to go back over some of the things that we have covered in the questioning, but we will probably end up in the same placewith parental complaintsat the end of it.
My first question takes us back to burdens. I hope you agree that we have one of the most delegated school systems in the world in terms of funding, which comes with a certain amount of regulation in exchange; John Dunford acknowledged that that was the case. Such a system makes it tempting to view schools as isolated institutions which should compete with each other. Do you think that competing in isolation is desirable, or should schools co-operate and collaborate with each other and other childrens services on issues such as behaviour partnerships?

John Dunford: Thank you, Jim, for raising that as it enables me to say something that I forgot to say at the beginning in response to the general question about the behaviour section of the Bill. I very much support the notion of school behaviour partnerships put forward by Sir Alan Steer, who is a recently retired head teacher, so he knows what it is like. Furthermore, he knows, as we do, that when schools work together in a local area, solutions can be found to some problems, which means that some youngsters need not be excluded from schools and taught at home. Such issues are never easy to deal with, but the vast majority of schools head teachers now have regular meetings to look at individual cases involving pupils who might be in danger of exclusion in one or other of those schools. Moreover, they think about what is right for those pupils in relation to their future in schools as a whole, not simply in that individual school. In my view, that degree of collaboration, rather than competition, is the right way forward for the education system.
However, clause 235(2) states that a school may
make arrangements with at least one other relevant partner.
On the one hand, we are pleased that that covers all secondary schoolsmaintained schools, academies and so on. That is good. On the other hand, it creates an opportunity for a school that does not really want to get into a proper partnership to find another school of the same mind, and tick the box, as it were. We feel that guidance, rather than a clause that might offer a way round for schools that do not really want to collaborate, would be better in defining how partnerships should work. But in general terms, we are very supportive.

Chris Keates: I would like to comment briefly on behaviour problem partnerships before answering the question on delegation. We think that behaviour partnerships are a very good idea and would like to see them extended to primary and special schools. We cannot see any sense in schools not working in such partnerships, either across or within sectors.
Our one concern is that, although we want schools to be able to select the partnerships and partners that they work with, we believe that the legislation should contain a measure allowing local authorities to intervene in circumstances where, for example, a hierarchy of schools develops in which some people try to collaborate with particular schools, and exclude schools with challenging behaviour problems which would benefit from being in a behaviour partnership. With self-selection, there is a danger that some schools end up outside a partnership, so we think that there should be a provision for that.
I absolutely agree that you delegate more than most other countries. You constantly delegate too much, and there is too much autonomy for a public service. But if you delegate to the extent that you do, there has to be regulation. I think that we have got to be very careful not to go down a track that says that all regulation and bureaucracy is bad. Actually, it is unnecessary bureaucracy that is bad and we all exist with some bureaucracy; I do not get paid if somebody does not administer it, but we must ensure that there is no unnecessary bureaucracy. If you are going to delegate to the extent that we do in this country, with a public service and millions of pounds of taxpayers money, you have to have a regulation framework that ensures that people operate within the national framework in the interests of both the public and the children and young people in the service.

John Bangs: I welcome Jim Knights question. To respond broadly, delegation of funding is one of the most significant forms of delegation in an industrialised country, but delegation of professional responsibility is not. I would say that that is still incredibly centrally controlled and restrained. We need to make that distinction.
On the specifics, I have already indicated the NUTs support for statutory behaviour partnerships, but I think that we need to move on from there. This is a welcome opportunity to nail what is a very boring debate about inclusion versus segregation of children with special needs. Pupil referral units, special schools and SEN support services based in particular schools can help partnerships out and can extend beyond that. To answer the question positively, I think that the development of clusters of schools over the past few years has been one of the most positive developments because it utilises all the expertise. It enables individual schools to use economies of scale and to appoint, for example, the proverbial Mandarin teacher for a number of schoolsyou would not be able to afford one for just one school.
When it comes to the section of the Bill on the Young Peoples Learning Agency, specifically chapter 4, clause 74academy arrangementsthere is a very strong argument for codifying in legislation the equal responsibilities of academies within these areas. We will seek to advise members of the Committee on that basis, and on when, for example, academies should pick up those responsibilities within the local authority family of schools and within clusters. At the moment, there is a divide between some academies and others that are influenced by guidance from the Secretary of State and also the changing nature of funding agreements. We will certainly seek the opportunity with this Bill to ensure that the kind of clusters that Jim Knight is talking about apply to academies as well.

Q 232

Jim Knight: Chris, you said earlier that inspection was a more significant burden than regulation. I am interested in the views of all three of you on whether the balance in the Bill is right between the measures on lighter-touch inspection for higher performing schools, and those for schools causing concern. Are those extra powers appropriate when there are concerns?

Chris Keates: This is unfortunately not an inquiry into inspection, but we do not agree with the provisions in the Bill about the health checks on schools. We agree with the lighter-touch inspections, but feel that accountability between inspection periods should be at a much more local level, especially now that there is an infrastructure of school improvements around the schools interoperability framework, data collection and local authorities statutory responsibilities. Giving Ofsted the opportunity to do health checks by analysing data without going into the school to get any context or to pick the data is unnecessary. That will not be a proper health check, whereas ensuring local accountability would be. I can understand the concern, in a system that must be accountable, about having, say, five or six years between inspections. That might lead people to the conclusion that a generation of children was going through those schools without their being subject to some form of inspection or check. My point is that even if there were an Ofsted inspection and it found that a school was inadequate, that would not necessarily make it better at that point for those pupils. You have to ensure that there are regular checks and that the available data and frameworks, and the conversations that local authorities must now have with schools, are used, rather than add to an inspection regime that, in our view, is badly in need of reform.
We think that the provisions are right on schools causing concern. We supported warning notices for local authorities when they first came in. However, we would expect that warning notices for schools on standards of education should not be used frequently if the local authority is monitoring, advising and supporting the school.
We are extremely supportive of the extension of the warning notices to ensure that staff are managed in accordance with their terms and conditions, which is the other aspect of schools causing concern. It is critical that that measure is brought in. That it has to be introduced is regrettableI am sure that parliamentarians are concerned that people are not implementing statutory provisions. Whether you like them or not, they should be implemented. A great deal of work was done to try to ensure that the terms and conditions that have been developed to enable head teachers and teachers to work effectively were put into place.
Work has been done to ensure that the provisions are properly implemented and some schools have done it extremely well. The compliance provision in the Bill will make no difference to those schools, because they have complied. Unfortunately, some schools have still not implemented those statutory provisions. A series of remedies has been tried, but none worked, basically because there are no real consequences in the system for failing to adhere to a statutory provision. We are extremely supportive of this element in the Bill. We do not see that they will be used on a regular basis, because schools that have not moved forward on terms and conditions will do so without the intervention of warning notices, because the provisions are clear about the consequences of not doing so. We believe that this part of the Bill is correct but we are not happy about inspection areas.

John Dunford: We think that it is very sensible to have less frequent inspection for schools that are doing well. Schools that do very well have very rigorous processes of self-evaluation, which are communicated to the inspectorate through the self-evaluation formthe SEF. Quite honestly, external inspection adds little to what you might call the quality control or assurance process. In a good school, that is done by self-evaluation. It seems to us sensible that you have less frequent inspection in such schools and some kind of a health check on the way. In fact, the report card that the Government are considering introducing would probably provide such a health checkOfsted calls it a risk assessment in between inspections. That would be a good guide for Ofsted on which schools need inspecting and which do not. No doubt a decision can be made when Ofsted inspection and the new report cards are brought in properly. We are very supportive of that.
We have some major reservations on the question of schools causing concern because the secondary schools that I predominantly represent feel that local authorities are not as well geared up to help, support and monitor them as they are primary schools. Not many local authorities employ people with secondary school leadership experience who can carry out that kind of role. Therefore, we are concerned about the way in which local authorities relate to secondary schools and how the Secretary of State is giving them extra powers through the schools causing concern stuff. Stuff is not a very technical term; the regulations.

Jim Knight: We know what you mean.

John Dunford: You know what I mean. It is that whole area. The idea in the Bill is that local authorities should be told to take on more advisory services if they have quite a few schools that are underperforming. What I hope you mean by that, and I think that you should say so in the Bill, is that local authorities should commission advisory services to support the schools. We do not want people sitting in county hall waiting for schools to go down the pan and then jumping out and supporting them; we want a process of monitoring in local authorities that produces something that is, as it were, when-ready support for schools. In the end, it is good schools supporting weaker schools that we know works. Those good schools must be commissioned by local authorities to support the weaker schools. That, we think, is the right way forward.
I have one more comment, Chairman. We worry about the schools causing concern labels, because we think that local authorities will try to avoid the Secretary of State doing that to them by slapping on a few more labels.

Q 233

Christopher Chope: Does Mr. Bangs want to make a brief comment on that? I hope that comments will be a bit briefer. At the moment, we will not be able to satisfy all the needs of Members, particularly Back Benchers, who want to ask questions.

John Bangs: I have a couple of points. We would start from here in terms of the health checks. There is a real conflict between school report cards, which are intended to identify a particular category of quality for a particular school, and the potential for contradicting the result of an Ofsted inspection. There is potential for a clash. What is more, we have school performance tables. We are in a bit of a mess about how we evaluate institutions. We have consistently argued for an independent review of the methods and arrangements used for evaluating institutions.
I just want to pick up on the intervention powers and warning notices for local authorities. Within the Bill, there is a tautology on page 111 in the definition of a low-performing school:
low-performing school means a school at which the standards of performance of pupils are unacceptably low.
I have never seen a more circular statement in my life. The point is, do we have an evaluation agency, warts and all, or do we not? We need something tighter than that in terms of a definition.
In terms of the Government intervening in relation to advisory services, that may well be the case, but that must connect with the evaluation of the effectiveness of local authorities as a whole, and that connection is not made. In terms of warning notices in relation to failure to comply with the pay and conditions document, we applaud the intention, but I notice that it does not apply to the new school support staff negotiating body, which is, incidentally, a re-creation of Burnham, as far as we can see, that teachers themselves do not have. I am pleased that they have managed to achieve that as well.
We have some concerns about the new intervention power or the power to give warning notices. What teachers do not have is a signed contract. What they do have is a very large pay and conditions document. The potential for intervention by a union or an individual who feels that the school governing body has gone against the pay and conditions document could be delayed by the praying in aid of the fact that the local authority must issue the warning notice first. That is our concern, but we welcome the intention behind it.

Q 234

Charles Walker: This is a huge question, Mr. Dunford, and if you can give me a short answer, you are a miracle worker. In your experience, why do secondary schools fail? Is it ultimately a poverty of leadership? Is the head teacher the man or woman who makes the ultimate difference?

John Dunford: Probably the best way to answer that question is to look at why some schools succeed, and then conclude that failing schools are not doing those things. We know that schools succeed if they have high-quality teachers, good leadership and a clear ethosyou understand what I mean by ethos. To keep my answer short and simple, I shall stop with those three, but I could probably mention another 45. If you have not got those three things, you are liable to be in trouble.

Q 235

Charles Walker: In your view, do head teachers coming into a failing school have enough powers to turn things around quickly?

John Dunford: There are lots of examples of school leadership teams, not just head teachers, turning aroundto use your phraseschools, although perhaps not quite on the time scale that politicians sometimes want. None the less, they can get things moving in the right direction and get the super tanker turned around reasonably quickly. All the evidence suggests that that is best done when the leadership of a good schoolnot just the head teacher, but others, such as the head of maths, perhapssupport other schools. That is the way forward. The Department has a good methodology that it uses for schools doing badly.

Q 236

Charles Walker: Sorry to go back, but I want to pick up on something that you said about half an hour ago, Chris Keates. We were talking about physical restraint, and about teachers becoming involved in playground disputes and having to physically restrain one or both pupils. I think that you said that in nine out of 10 such cases there will be a complaint from a parent. Is that really right? Are parents really so appalling now that they will find fault in teachers trying to protect their children from each other?

Chris Keates: Evidence from our casework suggests so. We are a very large union, as is the National Union of Teachers, but one of our most common pieces of casework is on parental complaints about a teacher who has intervened in an incident at a school, even though it has been properly dealt with and it was necessary to protect the child, or another child, from harm. That is why we welcomed the original guidance on physical restraint. You can never have something that pins all of that down, because clearly people have to react at the time. However, over the years, there has been a growth in parents, and young people themselves, complaining that the children have been assaulted in retaliation for the behaviour in which they were involved.

Q 237

Charles Walker: In my view, and perhaps in yours, that directly undermines discipline in the school. If parents will not support teachers, how can teachers expect children to respect them?

Chris Keates: That is absolutely right. Parental support for the school is critical to good behaviour in the school. Parents need to be consistent in their approach to their young people and to support the schools behaviour policies. However, of course, some parents are not supportive and will back their child regardless of what the child has done. Sometimes, of course, that is because they cannot really cope with things themselves. It is not all done because they wish to get back at the school. Sometimes, it is a defence mechanism, because they are not quite sure how they are going to cope with their childs behaviour in such circumstances. However, it is a matter of fact that teachers and head teachers are very reluctant to have physical contact with pupils, because of what that can lead to. We need a sensible and balanced system. We do not want people manhandling children. We must ensure that children are protected, but we must also ensure that professionals can do their job and that the health and welfare of all students is protected. We often have cases of members who have been protecting another child and who have found themselves accused of assault, because they have physically separated young people.

John Bangs: Briefly, I think that parents do not know about the vast majority of restraint incidents, and would not particularly worry about them either. Chris is right about the caseworkthose are the triggersbut that is the nature of casework.

Q 238

Alison Seabeck: In a sense, I return to earlier comments made by the witnesses, which seem to be a little contradictory.
John Dunford, you talked about the reporting of incidents being an increased burden on teachers and heads, but you went on to describe the numbers as small. I am not sure how those two statements marry up. If the numbers are small, the increased burden must be small, and not significant. Will you clarify the matter?
Chris Keates, you said that most schools already follow a fairly extensive reporting process. My daughter is a teacher, so I have some understanding of the process that she has to go through with such incidents. Do parents of children at schools that are less assiduous not have rights? When the child comes home, whether as an aggrieved party or a perpetrator, they will say something. If you ever get involved in dealing with young people, as I have in the past, you will know that they have information on their mobile phones and can tell you about their human rights and so on.
If the child comes home, should the parent not have the right to ask whether the incident had been reported or noted in any shape or form, or are you saying that that should not happen? I would welcome your comments.

John Dunford: The number of incidents may be relatively small, although, as John Bangs pointed out, in special schools the number of incidents can be quite large. I am concerned about the totality of the bureaucratic burden on schools, and this is yet one more thing.

Q 239

Alison Seabeck: The procedure is already in place, and we are simply firming it up. I cannot see that putting it in the Bill will be a significant additional burden, given that it will reassure some parents.

John Dunford: The moment we get these procedures, we get more regulation and more guidance. The whole thing adds to what, overall, has become an unacceptable bureaucratic burden on head teachers. That is the point.

Chris Keates: May I put it the other way around? I sympathise with the drift of your question, because we support this information being recorded. I think that there is a real issue about the parents right to know, but I look at it from the other standpoint. What if the teacher and the school do not report the incident and the pupil does? It is actually a protection for the school. What if the pupil has a history of disruptive behaviour? These things cannot be taken out of context. It seems to me that we must ensure that the legislation is acted upon in the context of, and be consistent with, the schools behaviour policy. That requires incidents to be recorded.
However, this is where schools get nervous, and I have a lot of sympathy. There is almost an inbuilt rejection of reporting because, somewhere along the line, it ends up becoming a performance measure. We have to be absolutely clear in our support for reporting that someone is not going to start aggregating data and making invidious comparisons of schoolsthat one has more violent incidents and more use of force than another.
We said in our briefing note that we think that those protections have to be built into the Bill. I know that it is not the Governments intention, but a change of policy could easily make it a performance measure. That would be quite inappropriate. It is already a problem for schools when Ofsted is number-crunching some of the data on exclusions. We are getting more evidence of schools not wanting to move down that path when they should, because they are worried that Ofsted will misjudge the context. It is about how the data is used, but we see it as being very much a protection for the pupil, for the parent and for the school, the teachers and the head teacher.

Q 240

Alison Seabeck: If all schools are reporting and everything is being put down, they are all on a level playing field, and parents could say, Can I have a look at your incident reporting? Some schools have been playing it by the book, putting everything down, and may therefore have high reporting level, whereas others have not been reporting things. In that case, one could not make a reasonable comparison. However, I understand your concern about figures.

Chris Keates: But it is a danger. You also have to ensure that there is a cut off in what you are recording. That is why we have to define issues about significant incidents and so on.

John Bangs: I do not see that the legislation will provide additional protection. The meaning of the word significant is in the eye of the beholder. Were a head teacher to decide that something was not significant and the parent to ask why it was not reported, the head would be vulnerable. There would then be a debate about whether the incident was significant. There would also be a legal debate if it was defined in law. In the end, what is reported to the parent must be down to the professional judgment of teachers and head teachers. There are more dangers in this proposal than advantages. We are looking forward to the discussion on the statutory guidance if the proposal goes through. I am trying to get my head around how long the statutory guidance will have to be to second-guess all the incidents that should be included.

Q 241

Alison Seabeck: May I come back to the special school example that you gave? You said that the restraint policy was already in place. When you were teaching, was the restraint policy published and available to parents?

John Bangs: That was back in the 80s. The school behaviour policy that we developed included the restraint policy. I think that there was an evolution in the understanding of the recording policy. To answer your question, our union has consistently argued that restraint policies should be part of behaviour policies.

Q 242

Graham Stuart: Everybody seems to agree that they want Ofqual to be independent and accountable. Do you believe that it will be independent? Its first chair and chief executive were appointed by the Secretary of State without any parliamentary scrutiny. Every member of the board will be appointed by the Secretary of State and he is the only person who can remove them from the board. The budget for Ofqual is also set by the Secretary of State. However, it is repeated relentlessly that it will be an independent body. If you got your budget from the same person who had appointed you and could remove you, would you not think that you worked for them?

John Dunford: I am very concerned about the break-up of the Qualifications and Curriculum Authority into Ofqual and an agency, which is weaker than an authority. I share your concerns about Ofqual to a certain extent. It should be independent. However, I feel those concerns more strongly about the proposed Qualifications and Curriculum Development Agency, which looks like an agency of the Government rather than an independent adviser.
On the question of curriculum and assessment, it is in the interests of the Ministers, Parliament, the profession and parents that the Government receive good, independent advice that is publicly available from an independent body. You could preserve that independence by making it report to Parliament. The officers could be approved by the Select Committee, although I am not sure what the correct parliamentary process would be. I share your concerns about Ofqual, but I hold those fears much more firmly over the QCDA. Both should be independent.

Chris Keates: Ofqual is probably as independent as it is going to get. I am not sure how you would get an independent body that did not have the funding and links that you have described. If you want somebody to regulate the exams who will be perceived to be independent, you are damned if you do and damned if you dont. If you do not have such a body, people will say that the results cannot be trusted because they are not independently scrutinised. I have more worries about the accountability of Ofqual than about its independence.

John Bangs: May I follow that through? I agree with my colleagues, particularly with Johns anxiety about the QCDA. You have raised a general question about how the Nolan procedures apply to any appointment. In the context of open procedures, there are genuine questions about the hidden agenda behind the Secretary of States role. We just have to suck it and see with Ofqual.
I think that what Ken Boston and the QCA board carved out an independence for the QCA, but there is no legal standing with regard to the word authority. In fact, most of the QCDAs responsibilities for the curriculum will be transferred from the existing QCA, and it advises the Secretary of State. The practical issue is whether we will get from the QCA the kind of independent and independently published guidance on the curriculum, for instance, as we have now. There is a genuine anxiety that that will not happen.
My concern about Ofqual relates to the split, particularly in the area of assessment. There is a requirement on Ofqual to evaluate the statutory assessment arrangements and on the QCDA to look at the non-statutory assessment arrangements. You will have one agency and one non-ministerial Government department looking at one single area and splitting it, so we could have overlap and confusion. A classic example of that is the developments over assessing pupil progress, which is a new mechanism for conducting teacher assessment. That currently lies with the QCA, and I assume that it will go to the QCDA. The impact on Government guidance will not be considered because it is non-statutory by Ofqual, and we could get some genuine confusion between the two agencies. Like John, I would like to have seen the QCA retained as a statutory independent body. I have been concerned about the covert stuff about Nolan, but that is a more general question.

Q 243

Graham Stuart: May I press you on the issue of accountability? You said that you are concerned about Ofquals accountability. There is nothing on the face of the Bill about that, partly because legislation does not, for instance, impose duties on Select Committees. Are you confident that the process will continue and that the next Chair will come before the Committee? I am not clear on whether that will happen before or after appointment approval, but it seems to be an unwritten process that is developing. Are you confident that Ofqual will be properly accountable to Parliament, even if that is not on the face of the Bill, and do you have any thoughts on whether Parliament should effectively hold it to account in order to emphasis and maintain, even if it is a legal fiction, the sense of Ofquals independence and its ability to speak as it finds?

John Bangs: That is a very good question. Ofqual is responsible to the Crown and is a non-ministerial Government department. Over the years, the Children, Schools and Families Committee, and its predecessors, have had to establish, simply by force of its ability to summon the chief inspector of Ofsted, a system whereby it is the proxy for Parliament because it produces the report, and that has now become accepted. The Select Committee will, no doubt, do the same in relation to Ofqual. I think that you are right and that that is unsatisfactory. I think that that should be set out in those terms on the face of the Bill in relation to Parliament. After all, it is a non-ministerial Government department.

Chris Keates: I support what John is saying. The accountability should be clear, but I also think that the relationship between the two agencies and stakeholders, with regard to consultation, should be clear in the Bill. That is not clear, and the voices of practitioners, organisations and trade unions might not be heard within those groups because of the split.

Christopher Chope: We how have 12 minutes left, so there is time for another round of questions from the Front Benches, with a maximum of four minutes each.

Q 244

John Hayes: With regard to the Young Peoples Learning Agency, it is clear from your written submissions that you have doubts about it. Indeed, the NASUWT states that it does not support the establishment of the YPLA and, tellingly, that it thinks it has all the hallmarks of an embryonic Learning and Skills Council. The NUT makes a point about the relationship between the functions of local authorities and the YPLA. Why do you have such reservations?

John Bangs: I want to explain our opposition to that clause, which removes the power to establish sixth form schools. I will come on to the YPLA afterwards. It may be that few local authorities are currently establishing centres that employ school teachers for 16 to 19-year-old students. But we may well be in a situation, given the dissolution of the Learning and Skills Council, where local authorities rightly start thinking out of the box, particularly in relation to their new responsibilities as a result of the Education and Skills Act 2008 and the consequent amendments to it, and think, How can we start thinking, with schools, how we develop new, innovative provision ourselves, in conjunction with other authorities? And how can we do that using our existing work force? Of course, the capacity to think out of the box will have been eliminated if clause 123 goes through. We cannot understand why it is in the Bill.
I sympathise with those who are employed in the learning and skills councils. Obviously, in respect of the transfer arrangements, we would fight fiercely, as unions, to defend those peoples employment rights and we hope that they will be transferred properly to new employment. But on the development of the Young Peoples Learning Agency I have a definite sense of dÃ(c)jÃ vu, particularly in relation to academies. I seem to remember the development of a funding agency for schools in the mid-1990s. I wonder whether the YPLA is going to be situated in York. We will see.
The fact is that if you are going to give local authorities the ability to intervene by sending in warning notices, for example, to sixth form colleges, they should have the responsibility collectively, together, or individually to establish 16-to-19 provision.
So although we have some questions about the establishment of the body overall, our main questions are about academies and the constraint on local authorities to establish new and innovative sixth form provision.

Chris Keates: I will be quick, Chair. We think that there is no need to set up another quango with limited accountability. Evidence shows that such bodies are generally more expensive than if the functions were performed either at local authority or Government Department level. Millions are currently being spent on these kinds of bodies. It was always intended to be light touch and the provisions show that that is sosigning off plans and passporting funding, for exampleand a whole new agency is not needed to do that.
On moving across the responsibility for 400 academies, a lot of the powers that the agency has are administrative powers to do with academies that could, as far as we are concerned, be performed where they should be performed: at local authority level. So we do not see the need for this at all.

John Dunford: Whereas we predominantly support the existence of the YPLA. In an ideal world we probably would have left in place the LSC, which has effectively produced a national funding formula for 16-to-19 education, with that money coming straight down through to the schools and colleges. Provided that it continues to do so, we would support the YPLA. We think that it is better for the YPLA to look after academies than the Department for Children, Schools and Families.

Q 245

Annette Brooke: Could I just return briefly to restraint, because there are great concerns about the interpretation of its significance? I have been looking at the existing guidance, which I expect you do not have in front of you at the moment, which contains a series of questions under paragraph 44 that try to give some feel of its significance. I personally would find it helpful if you were able to give a written response, with any views of your members, on whether those are the type of questions we are looking at or whether we need to go much further. I wonder if that could happen.
Do you have any comments now on the existing, non-statutory guidance?

John Bangs: We worked closely with the Department, through the ministerial stakeholder group and it is generally good guidance. That is exactly the point: it is not statutory guidance and it does not lay things down. It is a genuine support for and aid to schools. In fact, we sought and received guidance in relation to physical contact that is not restraint, such as teaching a child to play a particular contact sport. It is good stuff. That is where we want it to restnot to become statutory guidance out of legislation. We will send you a note on that.

Q 246

Annette Brooke: Thank you.

Chris Keates: We will send you a note, of course. There is no doubt but that the guidance has improved the situation. It is good, detailed guidance, but the fact of the matter is that guidance and a statutory context are a protection for all in the current situation in which schools work, in the context of the accountability that they should have, and the rights of parents and the young people themselves. Therefore, even though that guidance is good and has improved the situation, we support the provisions in the Bill.

Q 247

Annette Brooke: Again, on one of the other issues that we have already discussed, I want to ask about the complaints procedure. If complaints, having gone to the governing body and potentially not been satisfied, were referred on to the local authoritythat would include all maintained schools, including foundation schoolsand there was a procedure that involved either the young peoples learning agency or the local authority, would that be more satisfactory than this, potentially, very bureaucratic situation? I think that academies are not included within the complaints procedure at the moment.

Christopher Chope: I am going to ask you to add the answer to that to your memorandum, so I can get Sarah McCarthy-Fry to ask the last question.

Q 248

Sarah McCarthy-Fry: My last question is also about parental complaints. The Childrens Commissioner, and many charities and campaigners such as Esther Rantzen, have highlighted issues of bullying and parents being unhappy with the response that they received when they complained about their children being bullied. They take it to the local authority, but it does not have the power to intervene, and the problem is probably not of sufficient weight or gravity to be referred on to the Secretary of State. Do you think that a significant number of those incidents occur? Do you think that the Bill will address that?

John Dunford: No, I do not. I have major concerns about what the Childrens Commissioner is saying in this area. What is bulling to one person, is not bullying to another. If we get into a position where parents almost define, by default, what bullying is, we are in real trouble. We do not see the need for a whole new appeal process for bullying complaints.

Chris Keates: I think that there are issues about bullying being, first, recognised and, secondly, taken seriously. We have that in terms of staff, let alone in terms of pupils. There are clear definitions of what bullying is. To a certain extent, you have to bear in mind that schools are working in a context of feeling that they will be stigmatised for admitting that they have a problem with pupil indiscipline and bullying. We have to change the culture around that.
The point that you raised about bullying being reported is very important. As we put in our briefing, we, of course, are waiting to see where the recording of bullying will be, which is a whole new debate, but we would not tackle it by setting up an external complaints procedure. We do not think that that is necessary. The issue is, how do you get schools to consistently apply clear, transparent and fair procedures, so that parents, even is they do not like the outcome, at least feel that their complaint has been dealt with.

Q 249

Christopher Chope: Can we stop there and let Mr. Bangs have a go?

John Bangs: A bullying school is a failing school and there is no difference in that. I did not agree with the Childrens Commissioners comments. I thought that it was another bureaucratic procedure. There is every argument for a high focus on bullying in terms of local authority responsibilities in relation to their childrens plans, which is where access ought to be in terms of the elimination of bullying within schools.

Christopher Chope: That conveniently brings us to 10.25 am. On behalf of the Committee, I thank our three witnesses for a very illuminating session. It was very helpful to the Committee, and I hope that any written supplementary evidence will be sent to the Committee as a whole rather than to individuals. That brings us to the end of this mornings session. The Committee will sit again this afternoon at 1 pm.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One oclock.